State v. Talkington
| Citation | 345 P.3d 258,301 Kan. 453 |
| Decision Date | 06 March 2015 |
| Docket Number | 107,596. |
| Parties | STATE of Kansas, Appellant, v. Cyrus A. TALKINGTON, Appellee. |
| Court | United States State Supreme Court of Kansas |
301 Kan. 453
345 P.3d 258
STATE of Kansas, Appellant
v.
Cyrus A. TALKINGTON, Appellee.
107,596.
Supreme Court of Kansas.
March 6, 2015.
Jonathon L. Noble, assistant county attorney, argued the cause, and Amy Aranda, acting county attorney, Vernon E. Buck, first assistant county attorney, and Derek Schmidt, attorney general, were on the brief for appellant.
Stephen J. Atherton, of Atherton & Huth, of Emporia, argued the cause and was on the brief for appellee.
Opinion
The opinion of the court was delivered by MALONE, J.:
This interlocutory appeal concerns three issues: whether a residential backyard constitutes part of the curtilage under the Fourth Amendment to the United States Constitution; whether a social guest has standing to challenge the search of the curtilage at a host's residence; and whether drugs subsequently found on the defendant's person after an illegal search of the curtilage should be suppressed as fruit of the poisonous tree.
Police searched the backyard of a residence that defendant Cyrus Talkington was visiting and discovered methamphetamine near the back door. Talkington was arrested, and marijuana was found on his person. Talkington was charged with possession with intent to distribute methamphetamine, felony possession of drug paraphernalia, possession of more than 1 gram of methamphetamine without an affixed Kansas drug tax stamp, trafficking contraband in a correctional institution, and possession of marijuana. The district court granted his motion to suppress, reasoning the methamphetamine was found in the curtilage of the home, that a social guest has standing to assert a host's Fourth Amendment rights in the curtilage, and that the marijuana found on Talkington was fruit of the poisonous tree. The State appealed.
The Court of Appeals reversed, finding the backyard where the methamphetamine was found was not curtilage subject to a reasonable expectation of privacy, the standing issue
was thus moot, and the subsequent search of Talkington's person following his arrest was lawful. State v. Talkington, No. 107,596, ––– Kan.App.2d ––––, 2013 WL 1859215 (Kan.App.2013) (unpublished opinion). We granted Talkington's petition for review which argued the panel erroneously
engaged in reweighing the evidence rather than determining if substantial competent evidence supported the district court's suppression order.
Jurisdiction is proper under K.S.A. 60–2101(b) (review of Court of Appeals decisions upon timely petition for review).
Factual and Procedural Background
Around 4:30 p.m. on June 22, 2011, Lyon County Deputy Sheriff Cory Doudican and Emporia Police Officer D.J. Dragonas drove to a single-family residence in Emporia, Kansas. The officers were looking for Matthew Tucker to arrest on an outstanding warrant. The officers parked and exited their vehicle. As they approached the property, they observed Derric Joshua Garrison and Talkington, each with a leashed dog, walking from the south side of the house. Garrison lived at the residence, and Talkington was a long-time acquaintance who had come to the residence on numerous occasions to visit and to work on cars and mopeds.
Each man dropped the leash he was holding, and the dogs ran toward the officers, while Garrison and Talkington ran to the back of the house. Shortly thereafter, the men returned to the front of the house and restrained the dogs. The officers had a brief conversation with them about their actions and asked if Tucker was at the residence. Talkington stated he did not know Tucker.
Dragonas stayed with the men while Doudican walked to the backyard. Because there was no sidewalk to the back of the house, Doudican walked on an adjacent lot before walking back onto Garrison's property. Doudican was looking for Tucker or any weapons that could be used to ambush the officers. In the backyard, Doudican found a baggie of methamphetamine near a PVC pipe protruding from the ground. The baggie was partially covered by insulation on the ground and was about 3 to 5 feet from the back door of the residence. The baggie was about 20 yards from the property line. Doudican did not realize what it was until he was 5 to 10 feet from it.
Talkington and Garrison were arrested. Talkington was read his Miranda rights, see Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and was told he was being
arrested for methamphetamine found in the backyard. He said he did not know anything about it. Talkington was transported to the Lyon County Jail where officials discovered a baggie of marijuana during an inventory search of his belongings.
Talkington was charged with possession with intent to distribute methamphetamine, felony possession of drug paraphernalia, possession of more than 1 gram of methamphetamine without an affixed Kansas drug tax stamp, trafficking contraband in a correctional institution, and possession of marijuana. The State also prosecuted Garrison for possession of methamphetamine. Both Garrison and Talkington filed motions to suppress in their respective cases.
In Garrison's case, the district court suppressed the evidence after applying the factors set forth in United States v. Dunn, 480 U.S. 294, 301, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987). The court reasoned that the area where the methamphetamine was found was within the curtilage because the contraband was found in very close proximity to the house, Garrison had posted signs dissuading entry upon his property, and some sort of barrier had to be crossed to enter the property.
The district court incorporated all of the testimony from Garrison's hearing into the record at Talkington's suppression hearing, and the parties stipulated that Talkington was Garrison's social guest. At the hearing, Talkington argued that he had a similar right to privacy in the curtilage of the residence where he was a social guest, and the marijuana subsequently found on his person should be suppressed as fruit of the poisonous tree. Both hearings elicited testimony concerning the layout and characteristics of the house and surrounding property.
Garrison's single-family home is located on 0.9 acres, with the majority of the land in the backyard. A sidewalk runs along the front of the house parallel to the street, but no path or sidewalk leads to the backyard. A short rock wall runs along the south side of the property. Doudican estimated it was 2 feet high; however from other evidence, the district court found it was no more than 1 foot high. Several trees line this wall but do not block the view to the backyard and side of the house. The north side of the property
has a short wire fence, i.e., three posts connected by wire, which does not inhibit an onlooker from seeing the backyard from an adjacent property. An alleyway runs along the west or rear of the property. A “No Trespassing” sign and a “No Soliciting” sign are affixed to the front of the house.
At Garrison's successful suppression hearing, the district court held the area in which the methamphetamine was found was within the curtilage of his property, and no applicable exception existed for the allowance of a warrantless search. The district court granted Talkington's motion to suppress, reasoning that as a social guest he was entitled to the expectation of privacy enjoyed by his host, Garrison. The court further found that the marijuana was discovered on Talkington at the jail within a short time of the illegal search and that no intervening circumstances existed. Accordingly, the district court held that the marijuana seizure was fruit of the poisonous tree and should be suppressed as well.
The State filed an interlocutory appeal. The Court of Appeals reversed and remanded in Talkington, 2013 WL 1859215, at *1. Applying the Dunn factors, the panel agreed the location of the methamphetamine near the back door weighed in favor of Talkington and little evidence was presented concerning the use of the property. However, the panel stated that the factors concerning whether the area was protected by an enclosure and whether steps were taken to protect the area from observation, i.e., the lack of enclosed fencing which did not obstruct the view or access to the backyard, weighed in favor of the State. Accordingly, the panel held the backyard was not part of the curtilage, and the subsequent search of Talkington when he was booked into jail was also lawful. Talkington, 2013 WL 1859215, at *3–7. Because of its decision that there was no illegal search, the panel did not address whether a social guest has standing to challenge the lawfulness of a search in the curtilage. 2013 WL 1859215, at *6.
We granted Talkington's petition for review pursuant to K.S.A. 20–3018(b) and K.S.A. 60–2101(b) (review of Court of Appeals decisions upon timely petition for review).
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